THE legal experts have said the Electoral Commission of Namibia's decision to exclude travellers from voting is unconstitutional.
ECN announced last week that if a registered voter travels abroad, they will not be allowed to vote on 14 or 28 November.
The chairperson of the Law Reform and Development Commission of Namibia, Sacky Shanghala yesterday said he wrote to the presidential affairs minister and Attorney General Albert Kawana and the Office of the Ombudsman asking them to protect the right to vote which is a fundamental freedom and right in the Constitution.
Shanghala said the Attorney General has the responsibility to ensure that citizens' rights are upheld.
“Although the ECN is being reasonable in basing its decision on a 'one man, one vote' principle, the outcome of the application of the decision should not result in disenfranchisement of voters whose rights are superior to the decision,” Shanghala said.
He also argued that students studying abroad may not be able to afford the money to travel back to the country for elections.
Some civil society groups also criticised the decision, saying it was unconstitutional.
The Legal Assistant Centre's Dianne Hubbard called the move 'discriminatory', saying: “It worries me that only some people will be allowed to vote. There are many people who travel abroad for work or study purposes and they should be given an equal right to cast their vote.”
According to the new Electoral Act, if a voter is, by reason of absence, unable to vote on any polling day at a polling station within the constituency where such a voter is registered, the presiding officer of any other polling station, whether inside or outside Namibia, must, at the request of the voter, permit the voter to record his or her vote by way of a tendered vote.
Human rights lawyer Norman Tjombe said the decision was unlawful and “in violation of the Electoral Act and certainly unconstitutional as it will unfairly violate the voter's right to vote”.
“Whatever logistical and security reasons for such restriction, it can be attended by a proper administrative arrangement that should have been in place at the ECN, which they ought to have planned well in advance for considering the clear and unambiguous terms of the law,” Tjombe said.
ECN director of operations Theo Mujoro said the ECNs decision was based on the fact that they want to avoid a situation where people might vote twice.
He said the decision was based on a specific section in the new Electoral Act, without elaborating, while Kawana said “tendered votes no longer exist”.
Kawana also said the decision could have been based on “technological limitations” that have to do with the verification of voters, which if ignored, might lead to another court challenge similar to that of the 2009 elections.
“I believe the ECN's decision is genuine and based on verification challenges. If I registered to vote in Moscow and I come and vote in Windhoek, it might present some major verification problems as there is always the risk that I might have voted twice,” he said.
Kawana said the ECN seemed to be extra careful to ensure that the process is transparent and that opposition parties do not challenge the electoral outcome due to irregularities.
The ECN has registered over 3 668 voters abroad.